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2005 Supreme(Ori) 65
High Court Of Orissa
A. K. PATNAIK, M. M. DAS
PRASANTA KUMAR DAS - Appellant
Versus
REPUBLIC OF INDIA - Respondent
Opp. Parties CRMC 8479 Of 2001
Decided On : 01/20/2005
A.K.Panda, D.PR.DHAL, Debasis Panda, G.R.MOHANTY, M.K.SWAMY, M.S.PANDA, R.K.Samantaray, S.K.PADHI
The main legal point established in the judgment is the careful exercise of the power to cancel bail, the need for imposing conditions for a fair trial, and the requirement for substantiated allegations of tampering with witnesses.
Headnote:
Cancellation of Bail - Criminal Procedure - Code of Criminal Procedure, 1973 - Section 167(2), 437(3) - The court discussed the provisions of Section 167(2) and 437(3) of the Code of Criminal Procedure, 1973 and their interpretation in the context of granting and cancelling bail. The court emphasized the need for imposing conditions for bail under Section 167(2) and the circumstances under which bail can be cancelled. The decision highlighted the importance of ensuring a fair trial and the exercise of caution in cancelling bail.
Fact of the Case:
The petitioner filed for cancellation of bail granted to the accused under Section 167(2) of the Cr. P. C. in connection with a case involving various sections of the Indian Penal Code. The petitioner alleged that the accused was threatening witnesses and tampering with evidence.
Finding of the Court:
The court found that the bail granted more than three years back could not be considered illegal or arbitrary, and it was not proper to cancel it solely based on the absence of imposed conditions. The court also emphasized the need for imposing conditions to ensure a fair trial.
Issues: The issues revolved around the legality of the bail granted under Section 167(2) of the Cr. P. C., the petitioner's locus standi to file for cancellation, and the alleged threats and tampering by the accused.
Ratio Decidendi: The court held that the power to cancel bail should be exercised with care and circumspection, and it should be done in appropriate cases when there is a preponderance of probabilities that the accused is interfering with the course of justice. The court emphasized the need for substantiated allegations and specific instances of tampering with witnesses.
Final Decision: The court declined to cancel the bail but imposed conditions restricting the accused from entering a specific town and tampering with witnesses. The trial Court was directed to consider the question of cancellation of bail based on all materials presented.
A. K. PATNAIK, J.
( 1 ) THIS is an appli-cation filed under Section 439 (2) of the Code of Criminal Procedure, 1973 (for short the Cr. P. C.) for cancellation of the bail granted to Srimati Prabasini Kar by the learned Special C. J. M. (CBI), Bhubaneswar under Section 167 (2) of the Cr. P. C. in connection with RC No. 8/s/2000-Cal under Sections 120-B, 292, 342, 354, 363, 376 read with Section 511 of the Indian Penal Code (for short the IPC ).
( 2 ) THE facts briefly are that the petitioner Sri Prasanta Kumar Das filed a writ petition in OJC No. 13305 of 1999 praying for investigation into the Balasore Sex Scandal case in which it was alleged that a Physical Training Instructor of Balasore was luring young girls from Balasore on false pretence for high officials. The High Court passed orders on 9. 5. 2000 for investigation by the Central Bureau of Investigation (for short, CBI) into the said case and pursuant to the said order passed by the High Court, the CBI registered an F. I. R. in the aforesaid case treating the petitioner Sri Prasanta Kumar Das as the informant. Srimati Prabasini Kar who was working as a Physical Training Instructor in Balasore was arrested by the CBI in course of investigation on 14. 3. 2001 but was released on bail by the Special C. J. M. (CBI), Bhubaneswar by order dated 16. 7. 2001 on a petition filed by her under Section 167 (2) of the Cr. P. C. for non-filing of charge sheet by the CBI within the statutory period of 120 days.
( 3 ) MR. M. S. Panda, learned counsel for the petitioner submitted that the language of Proviso (a) to Section 167 (2) of the Cr. P. C. would show that the person released on bail under Section 167 (2) Of the Cr. P. C. shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter and Section 437 (3) in Chapter XXXIII provides that the Court may impose any condition which the Court considers necessary but the order dated 16. 7. 2001 of the learned Special C. J. M. , CBI, Bhubaneswar would show that no such condition for bail was actually imposed by the Court. He pointed out that Srimati Prabasini Kar who has been placed under suspension by the State Government with the headquarters at Baripada, is actually residing at Balasore and is threatening witnesses and trying to gain them over by various tactics. In this context, he referred to the allegations in paragraphs 5 and 6 of the petition as well as the First Information Report dated 30. 10. 2004 lodged by Harapniya Bank, the victim girl herself, and her statement recorded under Section 164 Cr. P. C. on 8. 10. 2004 as well as the First Information Report dated 8. 10. 2001 lodged by Ashok Kumar Tarai, the husband of Harapriya Bank. He cited a decision of this Court in Sri Pitambar Swain v. Ainthu alias Ashok Kumar Sahu and another, for the pro-position that bail granted to the accused can be cancelled if it was granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion and if the accused abuses his freedom by violating the conditions imposed in the bail order or tampers with the prosecution evidence or commits such illegal or criminal acts which would make his freedom undesirable. He vehemently submitted that since the bail order was granted to Srimati Prabasini Kar illegally and improperly and she has- abused her freedom and tampered with the pro-secution evidence, this Court should cancel the bail granted in her favour.
( 4 ) IN reply to the aforesaid sub-mission, Mr. Debasis Panda, learned counsel for Srimati Prabasini Kar, the opposite party No. 2, submitted that the petitioner Sri Prasanta Kumar Das has no locus standi to move for cancellation of bail and the CBI or the victim girl Harapriya Bank has not filed any application before the Court for cancellation of bail. He submitted that the use of the word may in Section 437 (3) of the Cr. P. C. indicates that the Court may or may not impose any condition for bail and therefore the order of the Sp
